What is the main source of law authorising this entity form?
The Companies Act 2014 (the “CA 2014”). The CA 2014 applies save to the extent that the Company’s Constitution provides regulations otherwise (where permissible).
Give a brief summary of the entity form:
Does the entity possess separate legal personality?
An LTD has separate legal personality.
(Maximum) period of existence
An LTD has no maximum period of existence. It has perpetual succession until it is wound up or struck off the register.
An LTD is governed by a one document constitution which sets out its governance regulations.
Liability of incorporators / shareholders
Members of an LTD have limited liability to the amount (if any) unpaid on the shares they hold if the company is wound up.
The Board of Directors of an LTD are responsible for the day-to-day running of the LTD and their duties are based on both statutory duties pursuant to the CA 2014 and fiduciary duties founded in common law.
The Directors may establish one or more committees consisting of whole or in part of members of the board of directors.
Certain decisions require the approval of the shareholders.
Can this type of entity be involved in international transactions and restructurings (e.g. cross border mergers, asset acquisitions, equity acquisitions, etc.)?
Subject to compliance with applicable law and in particular Competition Law, there is no prohibition on Irish LTD companies being involved in international asset acquisitions.
The European Communities (Cross-Border Mergers) Regulations 2008 (the “2008 Regulations”) provide for Cross-Border Mergers between Irish limited liability companies and limited liability companies in other EEA Member States.
Can this type of entity be publicly listed or held?
No. An LTD is not permitted to list any securities, debt or equity.Public Limited Companies (PLCs) are listed on the Irish Stock Exchange.
Can this type of entity be used for a non-profit or charitable organization?
A small number of Irish charities are established as private companies limited by shares; however this is not common.
Most charities or not-for-profit organisations are incorporated as Companies Limited by Guarantee (CLGs). Most charities are organised as a CLG, as a trust or as an unincorporated association.
Give a brief summary of the process of incorporation, formation, or organization, including:
Main documents required
- An LTD is incorporated by sending relevant documents and fees to the Companies Registration Office (the ‘CRO’).
- The following details/documents will be required for incorporation:
- Form A1 (the CRO form for the incorporation of a company);
- Constitution of the Company (sets out the rules and regulations applicable to the Company);
- Company name;
- Proposed company type;
- Registered office address;
- Company email address;
- Details of the proposed directors and secretary (must have a minimum of one EEA Resident director) (if only one director the secretary must be a different individual or can be a corporate body);
- Signature(s) of the subscriber(s) to the Constitution;
- Details of the proposed and issued share capital;
- Confirmation must also be provided: (i) of compliance with the Companies Act, 2014; (ii) that the company shall carry on activity in Ireland; (iii) the type of activity to be carried out by the Company in Ireland; (iv) the place where such activity is proposed to take place; and (v) the place where the central administration of the company will take place; and
- Payment of the appropriate fees (see below).
Involvement of notary, company register, governmental authorities
It is strongly advised that companies acquire a Reserve Name Certificate (the ‘RNC’) to reserve a specific name for the company. The name will be reserved for a period of 28 days. In the event that an LTD chooses not to apply for a RNC and the name is too similar of that of another company name, the registrar will request it to be changed, therefore delaying the incorporation procedure.
An LTD does not have an objects clause and has full and unlimited capacity to carry on and undertake any business or activity (save for illegal activities).
Incorporation will take approx. 5 business days.
Main costs, including registration and similar fees (excluding legal fees)
The fee for incorporation is €50.
There is no annual registration fee however annual returns do have to be filed with the Companies Registration Office and the fee is €20. As a registered address in Ireland is required, additional costs will be incurred if the Company does not have a property in place.
Is a description of the anticipated business or purpose of the entity required for incorporation, formation or organization?
An LTD does not have an objects clause and has full and unlimited capacity to carry on and undertake any business or activity (save for illegal activities).
Minimum number of incorporators / shareholders and residency requirements
The minimum number of shareholders is 1. The maximum number of shareholders is 149.
There is no requirement for shareholders to be resident in Ireland
Minimum number of directors (or other applicable officers) and residency requirements
- An LTD must have at least 1 director.
- A corporate body cannot be appointed as a director.
- All directors must be over the age of 18.
- At least one director must be resident in an EEA state.
- Where an LTD does not have a director resident in the EEA, the company must put in place a bond to the value of €25,000.
Minimum share capital, or equivalent, and payment requirements (including opening a bank account)
- No required minimum share capital.
- 1 share must be issued on incorporation, a subscriber to the Constitution of the Company must hold at least 1 share upon incorporation.
- Shares can be issued at nominal value or at a premium.
- An Irish company requires a bank account.
- The CA 2014 requires companies to keep adequate accounting records, in order to record and explain transactions made by the company and to enable financial statements to be prepared for the company.
Is the physical presence of incorporators / directors required in the jurisdiction for incorporation, formation or organization?
Signatories for incorporation do not need to be physically present. The incorporation form is submitted on an online portal and signatories are permitted to scan and upload the signature page.
Once the application form and corresponding signature pages are uploaded and submitted to the CRO the constitution will be registered, and the company will be incorporated.
Upon execution of the forms by the subscribers the physical presence of incorporators/ directors is not required.
Is a tax identification number, or equivalent, required? If so, how is it obtained?
Yes. Private companies will have to register with the Revenue Commissioners to discharge any tax obligations, such as corporation tax, Pay As You Earn (“PAYE”), and value added taxes (“VAT”).
A company can register by registering with the Revenue Commissioners at www.revenue.ie.
What is the title of the applicable company registry?
Companies Registration Office (“CRO”)
What types of information must be filed at the (company) register, and which of them will it be publicly available, e.g.:
- An Irish company is required to file its constitution with the CRO, which will be publicly available.
- Any charges against the LTD will have to be registered with the CRO and will be made publicly available.
- Adequate accounting records must be kept and annual returns filed with the CRO each year together with the statutory financial statements, a directors’ report, a directors’ compliance statement (if applicable) and an auditors’ report (if applicable), which will be published by the CRO.
- An LTD must also notify the CRO on a regular basis of any changes to the composition e.g. amendments to the constitution, appointment/removal of directors, alteration of share capital etc. This information will also be published by the CRO.
- The European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 requires corporate and legal entities that are incorporated in Ireland to upload adequate, accurate and current information on their beneficial owner(s) to their central internal register. The following information is required: Full Name; Date of Birth; Personal Public Service (PPS) Number; Nationality; Residential Address and the nature of the interest held by each beneficial owner in the company. Upon request by an Garda Siochana, the Revenue Commissioner, the Criminal Asset Bureau, the company must allow access to all information stored in their register of beneficial owners, save for the individual’s PPS number. The Companies Registration Office is statutory body responsible for the maintenance of the register.
What is the title of the executive body and its members? What are their main duties, tasks and responsibilities?
The executive body of an LTD is the Board of Directors.The Directors are delegated the power to manage the LTD under s158 of the CA 2014. The directors manage the day-to-day business of the LTD subject to the CA 2014; the LTD’s constitution and any directions given by the directors in general meetings (where the LTD’s constitution allows this).The directors must act in the best interests of the LTD and its shareholders and creditors.
Directors have fiduciary duties as set out under s228 of the CA 2014 and common law.
Every LTD must also have a company secretary who may be one of the directors, but where the LTD has only one director, that person may not also be the secretary. Unlike a director, a corporate body can be a secretary.
How are the members of the executive body appointed, dismissed and replaced?
- The first directors of an LTD are those persons determined in writing by the subscribers to the constitution (or a majority of them).
- Save to the extent that the LTD’s constitution provides otherwise, any subsequent directors (subject to their consent) must be appointed in accordance with s144 of the CA 2014, i.e. by the shareholders in a general meeting or from time to time by the existing directors (until the next annual general meeting where they can then be re-elected) either to fill a casual vacancy or in addition to the existing directors.
- Since the enactment of The Companies (Miscellaneous Provisions) (Covid-19) Act 2020, general meetings may now be held using virtual means and will not have to be physically present. This legislation is temporary in duration and it remains to be seen if it will be given permanent effect post Covid.
- The directors of an LTD may be removed by ordinary resolution of the LTD in a general meeting. At least 28 days’ notice must be given of a resolution proposing to remove a director and the director must receive a copy of the notice. The director must have an opportunity to make representations at the meeting or in writing upon receipt of the notice, which must be provided to the shareholders.
- An LTD must keep a register of its directors and secretaries and any changes must be notified to the Companies Registration Office.
Is it possible to appoint corporate directors or must all directors be natural persons?
A body corporate or unincorporated body of persons may not be a director.
Is there a requirement to have non-executive directors? How are they appointed, dismissed and replaced? Do non-executive directors serve on a separate body (two-tier structure) or can a one-tier board (with executive and non-executives) be appointed, or is some alternate structure used?
There is no legal obligation on private companies including an LTD to have non-executive directors. The distinction between executive and non-executive directors is one which has arisen in practice. The CA2014 does not distinguish between executive and non-executive directors. Therefore, the obligations and responsibilities under statute apply equally to all directors (whether executive or non-executive). Non-executive directors are not involved in the day-to-day management of the LTD and are not employed in the business, or report to the CEO/ Managing Director.
Non-executive directors have the same powers to manage the business of the LTD as executive directors and have the same legal duties and responsibilities to the LTD.
Non-executive directors are appointed and removed in the same way as executive directors.
The role of non-executive directors is confined to the boardroom, however their input into the board decision making process is invaluable, due to their impartiality, objectivity and independence. Their role includes contributions to the development of strategy and monitoring management performance and activity.
What is the title of the body of owners / shareholders / members, and what are the main tasks / responsibilities / powers of that body?
In an LTD the shareholders of an LTD are the holders of shares in the LTD. In an LTD the shareholders are the owners of the LTD.
Certain fundamental decisions are required to be made by the shareholders of the LTD as the owners of the LTD, such as: amending the LTD’s constitution, changing the LTD’s name, re-registering the LTD as a different type of corporation, varying its share capital, and authorising the redemption of redeemable shares etc.
What are the majority and quorum requirements for decisions by the shareholders? Can they be varied or changed?
- Two shareholders of an LTD present in person or by proxy is a quorum, except where the LTD is a single member company or the constitution says otherwise.
- Two types of resolutions may be passed by a company’s shareholders in a general meeting – ordinary resolutions and special resolutions.
- An ordinary resolution is normally used for routine non-contentious business. An ordinary resolution is passed by a simple majority - 50.01% of the votes cast at the meeting.
- A special resolution is used for fundamental issues concerning an LTD and its structure, such as amending the LTD’s name or constitution, or approving a restricted activity (pursuant to the Summary Approval Procedure). A special resolution is passed by not less than 75% of the votes cast at the meeting.
- A special resolution can also be passed by way of written resolution. It can also be passed at a meeting called at short notice, but in that case it must be passed by 90% of the votes cast at the meeting.
- The terms of any resolution (special or otherwise) before a general meeting may be amended by ordinary resolution moved at the meeting, provided that the terms of resolution will still be such that adequate notice of the intention to pass the same can be deemed to have been given. It is not possible to completing change a resolution or to introduce a new resolution until all the shareholders are present.
Any special governance regimes (e.g. depending on size, being listed at a stock exchange, or other criteria)?
The directors of large LTDs (with a balance sheet of €25m and a turnover of €50m) are required to either establish an audit committee or else give their reasons for not doing so.
What are the periodic accounting obligations incumbent upon the entity? To whom must those accounts be submitted?
Adequate accounting records must be kept and annual returns filed with the Companies Registration Office each year together with the statutory financial statements, a directors’ report, a directors’ compliance statement (if applicable) and an auditors’ report (if applicable).
An LTD is required deliver to the Registrar of Companies an annual return containing prescribed particulars in relation to the LTD.
The statutory financial statements of the LTD as laid before the general meeting; the directors’ report; a directors’ compliance statement (if applicable) and a statutory auditor’s report on the financial statements must be attached to the annual return.
Is the entity permitted to determine its own financial year?
An LTD may (by notice in the prescribed form given to the Registrar of Companies) alter its current financial year end date or its previous financial year end date.
A change may not be made if this would result in the financial year being in excess of 18 months.
Subject to certain exceptions, a company may only change its financial year end date where a period of five years has elapsed from the previous change.
Is the entity subject to any statutory (external) auditor obligations?
The directors must arrange for the statutory financial statements for the financial year to be audited unless the LTD is entitled to and has availed itself of an audit exemption.
Small LTDs are entitled to claim an audit exemption if they meet two of the following criteria: (a) a balance sheet total not exceeding €6 million; (b) a turnover not exceeding €12 million per annum; and (c) a number of employees not exceeding 50 persons. This exemption does not apply if the LTD holds a banking licence, insurance licence or is one of the financial services companies listed in sch. 5 of the 2014 Act (other than paragraphs 5 and 16).
Micro LTD are exempt from the obligation to provide their statutory financial statements along with their annual return filing. They can, instead, attach their abridged financial statement. A LTD is considered a micro company where two of the following three conditions are met: (a) company’s previous and current financial period turnover does not exceed €700,000; (b) the LTD’s balance sheet does not exceed €350,000; and (3) the average number of employees does not exceed 10.
Dormant LTDs can also claim an exemption to having their financial statements audited.
Requirements to appoint other persons (officers, secretary, internal auditor / accountants). If so, what are their functions? Are there any residency requirements?
The officers of an LTD are the directors, secretary and auditors.
No formal requirements to be an LTD secretary.
The LTD’s secretary has the duty to maintain records, and is the principal legal administrative and compliance officer within a LTD.
What is the title designated for 'ownership interests' (e.g. shares, quota, interests, membership)?
Shares in an LTD.
Are different classes of ownership interests possible? If so, what are some examples of different classes?
Different types of shares may include Ordinary Shares, Preference Shares, and Redeemable Shares.
A company can issue different classes of share, each class carrying different rights for the member holding each such class of share.
Usually, different classes of shares are distinguished in name e.g., ‘A Ordinary Shares’ and ‘B Ordinary Shares’.
The different classes of shares and the rights attaching to them must be included in the constitution of the LTD.
What documentation is required for the transfer of ownership interests?
- Share transfer forms for the shares.
- Updated share certificates.
- Any necessary pre-emption waivers.
Are there any additional formal requirements required for the transfer of ownership (notary, approvals, stamping, filings, corporate records)?
- Transfer forms must be approved for registration by the LTD.
- Board must satisfy itself it has absolute power to register the transfers without any consent being required from any shareholder.
- Share transfers must be presented for stamping with the Revenue Commissioners within 30 days of the transfer.
- Filings with the CRO relating to the transfer.
Are there any applicable stamp duties imposed when transferring ownership interests?
Stamp duty is levied at the rate of 1% of the market value of the shares being acquired.
How are shares issued? (including information on payment obligations, registration requirements)
The subscriber will receive the shares following a resolution of the directors.
The subscriber will be given a share certificate evidencing his/her shares.
The LTD’s secretary will enter the subscriber’s name in the share register.
Further information on equity contributions, e.g., non-cash payments on shares, (share premium) contributions without issuances of shares, can partially paid shares/ownership interests be permitted and what are the restrictions on them?
A prospective shareholder may provide non-cash consideration (which can include good will and expertise) only if the board agrees. Otherwise he/she must pay for shares in cash.
Shares may be issued at a premium. If this happens the excess amount of consideration above the nominal value of shares is held in a separate share premium account, and is treated as share capital.
Any requirements with respect to share cancellation, share repurchase and other capital reductions
An LTD can acquire its own shares by cancellation pursuant to a reduction of the LTD’s capital by either using the Summary Approval Procedure (“SAP”) or by special resolution confirmed by order of the High Court.
A LTD may purchase its own shares pursuant to s84(2) of the Companies Act 2014 which requires the acquisition to be funded from either profits available for distribution or the proceeds of a fresh issue of shares.
Any acquisition must be authorised by the constitution, the rights attaching to the shares in question, or a special resolution.
An LTD’s capital can be reduced by High Court Order or by SAP, which involves a resolution of the Shareholders and a Directors’ Declaration of Solvency. In some instances the SAP requires a third party auditor’s report.
Any requirements with respect to distributions to shareholders?
A distribution (or dividend) can only be paid if there are profits available for distribution.
The directors will have to ascertain whether there are profits available for distribution by deducting the realised losses from the realised profits of the LTD. This calculation is based on the latest set of audited accounts. They can then decide whether or not to recommend that the LTD pay a distribution to shareholders. The dividend will usually be pro-rata to the shareholders shareholding.
On a winding up, the shareholders can participate in a distribution of any surplus assets of the LTD (subject to any specific share rights).
Can the owners or shareholders adopt a restrictive or governing agreement among themselves such as a Shareholders Agreement?
Yes. The shareholders may enter into a shareholders’ agreement to govern their relationship but it must not conflict with LTD’s constitution. This is recommended best practice in Ireland.
Which are the typical annual maintenance costs of maintaining the existence and legal good standing of such an entity (excluding legal fees)?
- An LTD must hold an annual general meeting of its members (‘AGM’) each year however it need not be a physical meeting in the case of a single member LTD.
- Since the temporary enactment of The Companies (Miscellaneous Provisions) (Covid-19) Act 2020, AGMs may now be held using virtual means, such as teleconference or video conference.
- The LTD must maintain an address in Ireland which may not be a PO box number. All official correspondence and court documents will be sent/ served here.
- Adequate accounting records must be kept and annual returns filed with the Companies Registration Office each year together with the statutory financial statements, a directors’ report, a directors’ compliance statement (if applicable) and an auditors’ report (if applicable).
- The directors of an LTD must arrange for the statutory financial statements for the financial year to be audited.
- An LTD must also notify the Companies Registration Office on a regular basis of any changes of its composition e.g. amendments to the constitution, appointment/removal of directors, alteration of share capital etc.
What are the general corporate tax rates? (Specify if there is a national versus local distinction).
- 12.5% is the rate corporation tax is payable by an LTD on its profits which includes income and chargeable gains
- 25% is the corporation tax rate for certain designated activities (except trades) (e.g. working minerals, petroleum activities, dealing in or developing lands)
- 25% is also the corporation tax rate for certain non-trading income – interest not taxed at source, foreign income, royalties and other sources of income, rental income from land and buildings.
Summary of any specific matters, e.g. recent or prospective major legal developments
Under the CA 2014 an LTD is conferred unlimited capacity to undertake any business or activity, which eliminates the need for an objects clause and prevents actions of the company being considered ‘Ultra Vires’.
LTD also have the option to dispense with their AGM provided a resolution is signed by all members entitled to vote at such a meeting, which deals with all matters which would have been dealt with at an AGM.
The European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 requires beneficial ownership information to be disclosed on the Central Register of Beneficial Ownership.